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Menendez Case Ends in Mistrial, Averting Succession Fight

(Bloomberg) -- A judge declared a mistrial in the bribery case against Senator Robert Menendez after the jury deadlocked, dealing a dramatic setback to the U.S. Justice Department and avoiding a potential succession battle over the New Jersey Democrat’s seat.

It was an anticlimactic ending on Thursday to a trial that began five years after prosecutors first investigated Menendez, continued through nine contentious weeks of testimony and concluded when the judge said that further deliberations would be fruitless. Menendez, 63, faces re-election in 2018. Senate Majority Leader Mitch McConnell called for an Ethics Committee investigation of Menendez.

After U.S. District Judge William Walls returned to the courtroom from private meetings with all 12 jurors and the lawyers for both sides to discuss the panel’s inability to reach a verdict, the judge declared a mistrial.

Outside the courthouse, a defiant and emotional Menendez attacked prosecutors and the Federal Bureau of Investigation. “The way this case started was wrong,” he said. “The way it was investigated was wrong. The way it was prosecuted was wrong. And the way it was tried was wrong.”

The senator was alternately thankful to supporters and angry at detractors, appearing to choke back tears more than once. “What office or department of the federal government gives me back the past two and a half years of my life?” Menendez said. “Where do I go to have the damage they sought to incur to my reputation?”

Menendez said, “To those who left me, who abandoned me in my darkest moments, I forgive you. To those who embraced me in my darkest moments, I love you.” He added that “to those who were digging my political grave so they could jump into my seat, I know who you are, and I won’t forget you.”

Recalling his modest roots as the son of Cuban immigrants, he said: “Certain elements of the FBI, and of our state, cannot understand, or even worse accept, that the Latino kid from Union City, and Hudson County, can grow up to be a United States senator and be honest.”

Menendez, who didn’t testify, also said: “I’ve made my share of mistakes. But my mistakes were never a crime.”

DoJ Decision

The Justice Department, led by Attorney General Jeff Sessions, must decide whether to retry the case against Menendez and his co-defendant, Salomon Melgen, a Florida eye doctor and Menendez friend accused of bribing him.

McConnell said Senate investigators should look into Menendez despite the mistrial “because of the seriousness of the charges” and “potential violations of the Senate’s Code of Conduct.”

On Thursday, another Democratic senator, Al Franken of Minnesota, called for an ethics investigation of his own conduct after a radio news anchor said he forcefully kissed and groped her without consent on a U.S. military-sponsored entertainment tour in 2006.

One Menendez juror, Edward Norris, said outside the courthouse that the panel favored acquittal on most counts by a 10-2 margin. Norris said that prosecutors had failed to prove their case and that he believed the two men were friends with no corrupt intent.

“There was no smoking gun in the case,” said Norris, a 49-year-old equipment operator. When prosecutors finished presenting their case, he said, “In my gut I was like, ‘That was it? That’s all they had?’”

Norris said: “I didn’t think there was anything bad that he did. I just didn’t see it.”

The Justice Department released a statement saying it “appreciates the jury’s service in this lengthy trial. The department will carefully consider next steps in this important matter and report to the court at the appropriate time.”

Test for U.S.

The trial was the first major test of the Justice Department’s efforts to combat public corruption since the Supreme Court’s decision last year to overturn the conviction of Governor Bob McDonnell of Virginia, making it harder for prosecutors to prove bribery.

Menendez’s mistrial also prevents a political fight to force him out of the Senate, where Republicans hold 52 of the 100 seats. Menendez is the senior Hispanic lawmaker in Congress and a former chairman of the Foreign Relations Committee.

The senator was accused of taking bribes in the form of private jet travel, a Paris vacation and campaign contributions in exchange for pushing the doctor’s business interests at the highest levels of the U.S. government.

Defense lawyers said that the gifts and favors were simply part of a warm friendship over 20 years and not a corrupt quid pro quo, as prosecutors argued. They showed the jury photos of family dinners and a wedding, stressing the modesty and warmth of two men who called each other brothers.

“There was no real evidence of a bribery agreement because one never happened,” Menendez attorney Abbe Lowell told jurors in his closing argument on Nov. 6. “Not one email, not one document even hints at such a corrupt agreement.”

McDonnell Decision

The jury foreman delivered the note indicating the jury couldn’t reach a unanimous decision on charges of bribery, conspiracy, Travel Act violations and honest-services fraud. Jurors also didn’t agree whether Menendez had failed to make false statements on his government ethics forms.

Menendez and Melgen were charged before the McDonnell decision, but Walls applied the Supreme Court’s revised guidance in telling jurors how to interpret the law. The judge was aware that convictions of several public officials had been reversed because of faulty jury instructions after the McDonnell case.

Walls ordered the jury to start deliberations anew on Nov. 13 after dismissing a juror four days earlier for a pre-approved vacation. That juror, Evelyn Arroyo-Maultsby, gave extensive media interviews describing the fraught nature of the secret deliberations. She said that she favored acquittal on all 18 counts after the jury had at one point agreed to convict Menendez of making false statements for filing Senate ethics forms that omitted Melgen’s gifts.

Luxury Gifts

Prosecutors sought to prove that Melgen had given Menendez a luxurious lifestyle he couldn’t have otherwise afforded. His gifts included flying Menendez on Melgen’s jet to the doctor’s home in the Dominican Republic, paying for the senator’s three-night stay at a luxury Paris hotel with American Express rewards points and giving more than $750,000 in contributions to help the senator.

Prosecutors showed jurors photos of Melgen’s jets and his Dominican resort, emphasizing the opulence. In exchange for the gifts, prosecutors said, Menendez helped Melgen try to resolve a billing dispute with the Department of Health and Human Services, which said he had overbilled Medicare by $8.9 million. Menendez also tried to help Melgen in a contract dispute with the Dominican Republic, and he helped the doctor get visas for three of his girlfriends, the indictment said.

The overbilling dispute spanned several years and involved Melgen repeatedly drawing multiple doses of the eye medicine Lucentis from a single vial, despite U.S. policy that bars such multi-dosing. Prosecutors said Menendez had tried to get officials to change the policy to benefit Melgen, calling former Health and Human Services Secretary Kathleen Sebelius and former Senator Tom Harkin, an Iowa Democrat, to testify. But defense lawyers sought to show that Menendez wanted only to clarify a confusing and contradictory policy and wasn’t advocating on Melgen’s behalf.

Melgen lost his administrative case and was convicted of health-care fraud in a related criminal trial in Florida this year. He awaits sentencing and remains in custody.

Dominican Contract

On the Dominican contract, prosecutors claimed Menendez had threatened to hold a Senate subcommittee hearing if the State Department didn’t help to reduce the flow of illegal narcotics through Dominican ports and address Melgen’s languishing port contract. A former U.S. ambassador, William Brownfield, testified he hadn’t felt threatened but had discussed the contract with the Dominican president, Danilo Medina.

Jurors also heard testimony from two of the three women described in the indictment as Melgen’s girlfriends seeking visas. Witnesses told the jury that Menendez called the U.S. ambassador to the Dominican Republic after the embassy there rejected a visa for one woman and her sister. The sisters got their visas. Defense lawyers said that Menendez had helped thousands of people seeking visas and that prosecutors were unfairly cherry-picking those cases.

Prosecutors lacked any witnesses to say that Menendez and Melgen had a corrupt agreement. Instead, they called the same FBI agent four times to read emails and discuss other unflattering evidence.

The nine-week trial got off to a rocky start for prosecutors when Walls sent jurors out of the courtroom during testimony by the first witness, who was offering details of the luxury Paris hotel room where Menendez had stayed, to lambaste prosecutors for seeking to put on a “tabloid trial.”

Defense lawyers later clashed repeatedly with Walls, eventually moving for a mistrial after they said he had prevented them from defending their clients.

Before the jury could render a verdict, it had to work through a complex set of instructions from the judge that included a definition of what constituted an “official act.’’ Walls said it involved “any decision or action or any question, matter, cause or proceeding or controversy which may at any time be pending” and involved “the formal exercise of government power.”